Reclaiming TSCA, One Chemical at a Time

In 1976, when the Toxic Substances Control Act (TSCA) passed Congress and grandfathered-in some 60,000 untested chemicals, any regulatory hold the EPA could have had on manufacturers slipped quickly from their fingers. Simply by the sheer volume of substances already used in the United States, the agency fell far behind on reviewing the chemical inventory before it was even allowed to begin.

But it appears the EPA is now making small attempts to reign in one aspect of TSCA – the Confidential Business Information provision, or CBI. The designation allows companies to hide their chemical formulas if they provide sufficient reason to believe that making the information public would put them at a competitive disadvantage – the old “trade secret” status. Last week, the agency announced it had declassified 150 chemicals previously protected under CBI.

This time last year, Steve Owens of the EPA’s Office of Chemical Safety and Pollution Prevention issued a “challenge” to major industry trade associations. First, he asked that CBI claims be made more prudently in the future, “only when absolutely necessary.” Second, he asked companies to sift through their stacks of CBI claims granted in the past, and declassify all those that are no longer necessary. The letter reads like an invitation to sign a college honor code. But it’s been somewhat successful: chemical companies voluntarily declassified many of the chemicals the EPA disclosed this month. As for those who didn’t volunteer, the EPA politely informed them that their chemicals were no longer protected under TSCA and would soon be made public.

The declassification puts only a small dent in the 17,000 undisclosed chemicals on the EPA’s toxic substances inventory. Many were granted CBI status in their early development period, when companies were especially careful to hide recipes. But those secrecy privileges tended to last indefinitely.

It's become especially clear that the EPA has little power -- even under TSCA -- to regulate the chemicals that have come under public scrutiny lately, namely dispersants used to help clean up the BP Oil Spill and fracking fluids used to break into oil and gas deposits. But among the 150 chemicals that lost their confidentiality claims this spring are some that did compose Corexit, the controversial oil dispersant, as well as domestic products like air fresheners, and non-stick, stain resistant and fire resistant materials. So without flexing much regulatory muscle, the agency is, at least, making health and safety information available to the public – an effective move, maybe, if the public can figure out what to do with it.

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